The Palestinians​ who were forced out of their homes in 1948 were not regarded by Israel as refugees. That would have implied that Palestine was their country, to which they would have the right to return. This was not the way the Israeli authorities saw it, and they did their best to make sure the return would never happen. It was therefore in some sense logical, or at least consistent, that they were not given the same legal status as other international refugees when the UN High Commissioner for Refugees (UNHCR) was established in 1951. Palestinian refugees remained under the charge of the makeshift UN entity created in 1949 to take care of them, UNRWA (United Nations Relief and Works Agency). The arrangement meant that their needs were recognised but not their rights. Today 4.9 million Palestinian refugees – the largest number of refugees anywhere by country of origin – fail to appear in any UNHCR statistics.

Arab Jews who were being absorbed into the new country at the same time were not called refugees either. They came through maabarot (transits), as though by reaching Israel they were passing through the gates of heaven; in Hebrew they were said to be ‘making aliya’, ‘ascending’. Nor were they seen as mere ‘immigrants’: they were returning home after two thousand years of longing. A few months ago, the Israeli High Court rejected the appeal of 21 residents who wanted their nationality to be listed as ‘Israeli’ rather than ‘Jewish’ in the Population Registry. Palestinians, who are often accused of denying the existence of Israel, found an unlikely ally here in the High Court.

Then there were the ‘present absentees’ and ‘internal infiltrators’: Palestinians who never left Palestine but who had left their villages temporarily to stay in another part of Palestine. When they tried to return to their homes in what was now Israel they were prevented from doing so – a prohibition that continues to this day. Among them was the poet Taha Muhammad Ali from the village of Saffuriyya. He hadn’t left Palestine but he wasn’t allowed to return to his village and ended up living in nearby Nazareth. In spring and summer he and his fellow villagers would steal onto their land to pick wild herbs. ‘This land denies,/cheats, and betrays us,’ he wrote:

its dust can’t bear us
and grumbles about us –
resents and detests us.
Its newcomers,
sailors, and usurpers,
uproot the backyard gardens,
burying the trees.

They keep us from looking too long
at the anemone blossom and cyclamen,
and won’t allow us to touch the herbs,
the wild artichoke and chicory.

By 1948 there were three distinct groups of Palestinians: those who were now Israeli citizens; those in Jordan who were Jordanian citizens; and those who were stateless UNRWA-registered refugees in Gaza, the West Bank, neighbouring Arab countries or scattered elsewhere in the world. More fragmentation and differentiation was to come, making a mosaic of the Palestinian people. Sometimes, the Palestinians of 1948 and those, like me, of 1967 are together in a single portmanteau definition – for example, when Naftali Bennett, a member of the Israeli cabinet, called us shrapnel in Israel’s backside.

My father refused to register my family with UNRWA. Reluctantly, we became citizens of Jordan, which was trying its best to make us forget we were Palestinians. But the hope of dividing Palestine between Israel and Jordan, with each absorbing as citizens some of these refugees without rights, was foiled by Israel in 1967 when it took over the West Bank from Jordan. We were now under occupation.

Until 1967 we lived with a simple tale. From my family I heard about the heavenly city of Jaffa, which they’d been forced to leave in 1948. At school I learned the geography of historic Palestine: no account was taken of Israel’s presence. My geography teacher, Abu El Awad, who wore traditional Arab dress, would draw the map of Palestine on the blackboard: the Dead Sea in the south, further north Lake Tiberias, and above it another small lake, Huleh. We had to memorise all this, unaware that Huleh was no longer there, having been drained in the early 1950s. We also sang (as we do to this day) of labanel-jamouseh, the milk of the water buffalo that once lived in Huleh and has now become extinct, just like Huleh itself.

Then began our real education, and we would have had a head start if we’d listened more attentively to the generation of the Nakba. None of the tactics Israel used to control us was new. The military government set up to rule over the Palestinians who’d been granted Israeli citizenship in 1948 was dissolved only six months before another was established in the West Bank and the Gaza Strip. The same tactics were used and the same personnel were in charge. I remember a relative from Haifa who had stayed in Palestine and become an Israeli citizen telling my father what to expect. He began by assuring us that we were now in the honeymoon period; soon enough the hardships would begin. First there would be crushing taxes, then land acquisition, then what was left of the land would be put out of our reach by planning restrictions. This was exactly what happened. But we hadn’t been prepared to listen or to take precautions. We considered those who’d stayed to be lackeys of the enemy, defeated people in thrall to their Israeli masters. All the glamour belonged to those who held the gun and fought like men, not to those who practised sumoud: endurance and perseverance. I remember a cartoon showing someone being kicked in the backside. The caption consisted of one word – sumoud. That we in turn would not be listened to was something I learned later, when I joined the 1991 negotiations between Israel and the PLO in Washington.

After the 1967 war, Israel spread the word that its occupation of Palestinian lands was the most benevolent in history, even if the ungrateful Palestinians refused to accept it. Those who actively resisted were called fedayeen; but Israel’s word for them was mukharebeen, which is what you call a naughty child in Arabic – anta mukhareb, ‘you are a spoiler.’ What, I wondered, were we spoiling? Then I realised that Israel was putting things in order for us and for them and we were spoiling it. Eventually, when George Bush declared the ‘war on terror’, we graduated to being irhabyeen, ‘terrorists’, every one of us, without exception. In Israel’s eyes we are all potential terrorists. And we are all here by permission of the Israeli state. Those who have a Palestinian passport are no different: the number on that passport is assigned to us by Israel and recorded in its security files and databases. Israel can on a whim forbid anybody to return home simply by revoking their residency. This is now the status of all Palestinians in the Territories and East Jerusalem. We are all infiltrators living where we aren’t supposed to live.

By 1987 the number of mukharebeen had greatly increased in the Occupied Territories. Most of us were spoilers. We used every non-violent method and some violent ones to show that we’d had enough of occupation: the First Intifada had begun. Our insistence on a military struggle had brought no results. It was the non-violent uprising of 1987, waged inside the Occupied Territories, that forced Israel to the negotiating table. In 1991, four years after the Intifada began, Israel was persuaded to attend an international peace conference in Madrid, which was followed by negotiations in Washington between the Israelis and a Palestinian delegation. But the leadership outside the Territories failed to recognise the role those of us living under Israeli rule had played in the civil struggle, as I was to discover when I took part in the negotiations as a legal adviser. Incidentally, I remember Edward Said coming to Washington to offer his services to the delegation only to be sent away. He could have played a crucial role, explaining to the American public what these negotiations were about. What sort of leadership refuses an offer like that?

Throughout the year I spent in Washington, and for some time afterwards, one question kept nagging at me: how did Israel succeed in using more or less the same tactics against the Palestinians and their property in 1967 as they had used in 1948? Why had the Palestinians not learned how to foil those tactics? Israeli military orders dealt with every aspect of life in the Occupied Territories as well as organising relations between the Palestinians – some but not all of them Israeli citizens – and the Jews who’d settled there. It was clear that Israel’s strategy in the negotiations was to hang on to as many of these orders – there were almost a thousand – as possible. Different orders applied to the two groups, discriminating between them in terms of allocation of land, use of natural resources and opportunities for development and growth. Marching in step with the military orders, Israeli laws were imported into the Occupied Territories and applied exclusively to the settlers. There had to be separate and unequal development – apartheid – if the Jewish settlements were to flourish. I had spent a year desperately trying to impress on the Palestinian leadership the need for a legal strategy based on a review of Israeli military orders when instructions to desist arrived from Arafat’s headquarters in Tunis: acknowledging the existence of military orders would only give them legitimacy. I packed my bags and went home.

After​ I left Washington I remained intrigued by the Palestinians’ and Israelis’ very different attitudes to the law. I began exploring each side’s legal narrative. A legal narrative – how people tell the story of their rights – is a construction: for it to stand it must have consistency and its own internal logic, as well as external reference points to which others can relate. And it must be communicable. In the Occupied Territories Israel has expressed its narrative mainly in terms of military orders, which it has successfully kept in force. The Palestinian leadership’s thinking on legal matters is characterised by a search for absolutes, apparent in the excessive stress they put on recognition of the PLO, believing that if the Israelis recognised the organisation they would somehow also be recognising its programme of self-determination.

The thinking is abstract: it takes no account of the shifting legal ground over which negotiations are conducted, and fails to anticipate the other side’s legal case, which makes it unable to respond adequately. At a meeting of the Palestinian National Council in Algiers on 15 November 1988, the PLO recognised the need for an international conference whose aims would include ‘the annulment of all measures of annexation and appropriation and the removal of settlements’. But it failed to devise a strategy for achieving this goal. Instead, the 1993 Declaration of Principles and the 1995 Interim Agreement between Israel and the PLO provided for the military orders to remain in force. Though it remained undeclared, what was in fact being preserved was a system of apartheid.

To this day Jerusalem demonstrates the inability of Palestinians to fight their cause by legal means, in stark contrast to the Israelis. After 47 years of Israeli rule Jerusalem is organised, run and designed for the sole benefit of Israeli residents, particularly settlers in and around Arab East Jerusalem, with a shrinking ghetto assigned to disenfranchised Palestinian residents. Israel never announced it was annexing the West Bank; as for its incremental control of Jerusalem, it too is discreet, sometimes brutally so. Compare the struggle in 2012 to win nominal recognition at the UN for the state of Palestine, even though the Palestinian Authority has no territorial sovereignty. Israel’s struggle takes the form of persistent, low-level administrative actions; the PLO – and now the Palestinian Authority – have lofty, abstract aims that have great resonance but are almost empty of practical meaning. The wish to entrench its virtual acquisition of a state sometimes manifests itself in physical terms: for example, the construction in Ramallah of a million-dollar presidential palace for visiting dignitaries who come to pay homage to the putative head of a state yet to be born.

This difference in approach to law and nation-building doesn’t of itself explain the defeat of the PLO in negotiations with Israel. Almost equally important is the fact that the experience of the Palestinian people under occupation meant little to Palestinians living elsewhere, including our leaders in exile. One kind of struggle, that of the glamorous, sometimes desperate fedayeen in the camps, prevailed at the expense of others, but it wasn’t because of a dearth of information from Palestinian organisations in the Occupied Territories.

Of course I speak as a lawyer and a founder of al-Haq, the Palestinian affiliate of the International Commission of Jurists. I doubt whether the PLO leadership took the slightest interest in our study of Israel’s illegal Road Plan 50 of 1984, a comprehensive reconfiguration that aimed to link Israeli settlements in the West Bank, already built or only planned, to one another and to Israel, bypassing Palestinian towns and villages. In the West Bank we succeeded in forming a committee which challenged the plan by submitting hundreds of objections. We also suggested that the plan be challenged at the international level, and that the opinion of the International Court of Justice at The Hague be sought. We made sure that our study reached the PLO, but we never got a response. Perhaps I was naive to think that resistance to a road plan stood a chance of being noticed when there was the armed struggle to think about. In the leadership’s refusal to listen to those who lived in the Occupied Territories was a hollow echo of what we in the West Bank had said of the 1948 Arabs. We had failed to listen to them.

The negotiations that began in July last year between Israeli and Palestinian representatives under American patronage took place behind closed doors and between two hugely unequal sides. There was no prospect of international law being applied. Israel decides most aspects of Palestinian life as well as the very existence of the Palestinian Authority. Were there a powerful third party prepared to invoke the Fourth Geneva Convention and the enforcement mechanisms it provides for, Israel would be forced to withdraw and to reverse the consequences of its illegal occupation. But the third party is biased. Polling shows that most Israelis oppose withdrawal to pre-1967 ceasefire lines, even if land swaps were agreed to accommodate Jewish settlements. A number of observers on both sides have noted that the most any Israeli leader is prepared to offer is less than the minimum that any Palestinian leader could ever accept.

What​ can be done to end this conflict? I would argue for a two-pronged approach. Israel must be made to realise that the failure to apply international law will not last for ever and that occupation will begin to exact an economic price; but it also needs to see the benefits it can derive from making peace. For the moment the Israelis show no sign of getting over the dangerous euphoria that was a result of their victory in the war of 1967 and continue to believe what Moshe Dayan, the minister of defence, declared at the time: that Israel is now an empire. Why should this empire, the sixth biggest exporter of weapons in the world, submit to international law? For the time being the Boycott, Disinvestment and Sanctions movement seems to me a necessary tactic. I can’t exaggerate the relief I’ve felt now that it’s clear that I wasn’t criminal, mad or naive when I used to call for the enforcement of international law. Recently, in response to corporate accountability rules, several European banks and the Norwegian government’s pension fund have started to withdraw investments from Israeli companies involved in the settlements while the Norwegian Council on Ethics has recommended excluding Israeli companies ‘due to … serious violations of individual rights in war or conflict through the construction of settlements in East Jerusalem’. Yet high levels of investment in Israel have been the norm for close to half a century, despite the fact that the international law relating to occupation is fundamentally unchanged. Why has Europe only now discovered that Israel is in breach of the law?

If disinvestment continues, Benjamin Netanyahu will turn out to have been over-confident when he declared in February that world demand for Israeli high-tech goods would enable the country to outflank the boycott. But the boycott is a means, not an end. The objective is to overcome the anger and hatred that fuel exclusion, partition and separation. Once Israel begins to apply international law, the political outcome, whether one state, two states or a confederation with other states in the region, should be resolved by referendum. And once people’s rights are recognised, all kinds of possibility begin to open up.

In 1993 I realised how quickly things can change. Just before the Oslo deal was signed, young Palestinians were saying that they would fight Israel to the last day of their lives. But once the deal was signed and began to offer a glimmer of hope the tone changed. You heard them say: Yikhribbeit el hjar, ‘to hell with stone-throwing’. Reminded of their earlier position they said in their defence that they wanted a better future and a chance to live in peace with the Israelis. Prominent among those who went through this transformation and put their faith in the peace process was the Fatah leader, Marwan Barghouti, in his early thirties at the time, who is now serving several life sentences for allegedly leading attacks against Israel. It is a mistake to hold the young to the values we were proud of during the First Intifada, the golden time of struggle. To them we are the generation that failed.

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